Blue-Slip Battle: The Senate Obstructionists’ Secret Weapon

The Senate transformed President Obama’s ability to win confirmation for his judicial appointments last week by invoking the nuclear option—a ban on filibusters against nominees, apart from Supreme Court justices. With that, Democrats effectively lowered their threshold for victory from sixty votes (the number needed to cut off debate) to a simple majority of fifty-one. (Fifty-five Senators currently vote as Democrats.) But Obama faces one remaining barrier to his ability to fill vacancies in the federal courts: an arcane senatorial tradition known as the blue slip.

When a Presidential nominee for a judgeship is referred to the Judiciary Committee—the start of the confirmation process—the two senators from the nominee’s home state are informed by a letter on light blue paper. The letter invites each senator to check a box indicating whether he or she approves or disapproves of the nomination. Blue slips are not authorized or mentioned in the Constitution, in federal law, or even in the rules of the Senate. They are nothing more than a tradition, which has been in use off and on (mostly on) since the early twentieth century. (The Congressional Research Service put together a history of the blue slip in 2003.) “It appears to have started as an information-gathering tool for the Judiciary Committee, but it evolved into something like a veto power,” Sarah Binder, a congressional scholar at the Brookings Institution, told me.

In the mid-aughts, when Orrin Hatch was chairman of the Judiciary Committee and Democrats began agitating against some of President George W. Bush’s nominees, Hatch started to ignore the blue-slip tradition. He would conduct hearings even if Democratic senators from the nominees’ home states had not sent in positive blue slips, and several of those nominees were ultimately confirmed. But Patrick Leahy, the current chairman and a Democrat, has restored the use of blue slips. Last week, after the nuclear-option vote, Leahy recommitted himself to honoring blue slips. “I assume no one will abuse the blue-slip process like some have abused the use of the filibuster to block judicial nominees on the floor of the Senate,” Leahy said. “As long as the blue-slip process is not being abused by home-state senators, then I will see no reason to change that tradition.”

So what does this mean in reality? It means that, in states with two Republican senators, President Obama can effectively be blocked from appointing anyone to the federal bench. The list of federal judicial vacancies tells an extraordinary story. For example, there are seven vacancies on the federal district courts in Texas. President Obama has not nominated a single person to fill those seats. This is because of the hydraulic effect of blue slips. Obama’s practice has been to try to get advance clearance from Republican senators before he nominates anyone to the federal bench from their states. He does this, understandably, because he doesn’t want to put anyone through the ordeal of the confirmation process if they are simply going to be blue-slipped. But the Republicans don’t agree to any of Obama’s choices, and so the seats stay vacant, sometimes for years. (Judge Royal Furgeson, in Dallas, took senior status in 2008 and still hasn’t been replaced.)

The story is much the same throughout the parts of the South and the West where Republican senators preside. There are three vacancies in Kentucky, three more in Georgia, and two in Alabama. And it’s not true just for the district court; Leahy has honored blue slips for circuit-court judgeships, as well. There are two vacancies each on the Fifth and Eleventh Circuits, which together cover most of the states in the old Confederacy. Currently, there are eight hundred and seventy-four federal judgeships, and ninety-three seats (more than ten per cent) are vacant. Fifty-one of Obama’s nominees are pending, and the vast majority of the remainder are either very recent or in Republican-controlled states. Unless Leahy cracks down on the use of blue slips, Obama’s future gains from the nuclear option are likely to be confined to states with Democratic senators. By employing the blue slip, Republican senators can stymie Obama’s nominees (or prevent them from even being nominated) without having to resort to the filibuster.

President Obama’s legacy in the federal courts certainly looks to be different than it did just a few days ago. The three nominees whose stalled appointments precipitated the nuclear showdown—Patricia Millett, Nina Pillard, and Robert Wilkins—will likely be confirmed later this month and will give Democrats a strong majority on the D.C. Court of Appeals, the second most important court in the nation. But, as the blue-slip process illustrates, the Senate remains a balky, hidebound, and inefficient institution, and the President’s opponents will continue to do their best to keep it that way.

Photograph: Chip Somodevilla/Getty

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.